Weergave van een sluitmechanisme
Gemeenschapsmerk. Vormmerk. Nietigheidsprocedure inzake het onderscheidend karakter van het merk dat een weergave van een sluitmechanisme is. Voor een gedeelte van de aangegeven waren is het teken niet onderscheidend (r.o. 82). Van inburgering in een ´substantial part of the European Union´ is geen sprake, zodat van inburgering geen sprake is.
79 Although it is possible that a locking device identical or similar to that of the contested mark might be adapted for use on the goods mentioned in paragraph 75 above, the fact remains that such a device departs significantly from the norms and customs of the sector and, consequently and contrary to what the Board of Appeal found in paragraphs 52 and 53 of the contested decision, possesses the minimum degree of distinctive character required to justify the registration of the contested mark in respect of those goods.
82 It is apparent from all of the foregoing considerations that the first plea must be partially upheld and the contested decision annulled in so far as it declared the contested mark invalid in respect of ‘Jewellery, including rings, keyrings, buckles and earrings, cuff links, bracelets, trinkets, brooches, necklaces, ties pins, ornaments, medallions; horological and chronometric instruments and apparatus, including watches, watchcases, alarm clocks; nutcrackers in precious metals, their alloys or coated therewith, candlesticks in precious metals, their alloys or coated therewith’ in Class 14 and ‘leather and imitations of leather’ and ‘umbrellas’ in Class 18. The remainder of the first plea must be dismissed.
99 It follows that the absence of distinctive character of a mark (be it a word, figurative or three-dimensional mark) on the territory of a single Member State is sufficient to justify that that mark be refused registration or declared invalid if it has been registered, unless Article 7(3) or Article 52(2) of Regulation No 207/2009 applies. The application of those two provisions presupposes the production of evidence of distinctive character acquired through the use of that mark in the part of the European Union where it was devoid ab intitio of any such character, namely in the Member State concerned.
100 The unitary character of the Community trade mark, to which the applicant refers, does not cast doubt on that finding but, on the contrary, confirms it, since it is apparent therefrom that, in order to be accepted for registration, a sign must possess distinctive character, inherent or acquired through use, throughout the European Union (υγεία, paragraph 98 above, paragraph 40). It would be paradoxical to accept, on the one hand, pursuant to Article 3(1)(b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25), that a Member State has to refuse to register as a national mark a sign that is devoid of any distinctive character in its territory and, on the other, that that same Member State has to respect a Community trade mark relating to that sign for the sole reason that it has acquired distinctive character in the territory of another Member State (see, by analogy, υγεία, paragraph 98 above, paragraph 53).
101 It is apparent from all of the foregoing considerations that, since it found, in paragraph 73 of the contested decision, that the applicant had not adduced evidence of the acquisition by the contested mark of distinctive character on account of the use which had been made of it in a number of Member States, the Board of Appeal did not infringe either Article 7(3) or Article 52(2) of Regulation No 207/2009 when it declared it invalid for the goods mentioned in paragraph 83 above.
Op andere blogs:
Nederlandsch Octrooibureau (Sluiting als merk)
